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Brooks, Hannah 1/10/2014 For Educational Use Only

SAPPHIRE BOUND!, 1989 Wis. L. Rev. 539

1989 Wis. L. Rev. 539 Wisconsin Law Review 1989 SAPPHIRE BOUND! Regina Austin * Copyright 1989 by the University of Wisconsin; Regina Austin In this Article, Professor Regina Austin decries the dearth of writings on the legal problems of minority women and urges minority feminist legal scholars to focus their professional energies on filling the gap. She particularly laments the subtle and not-so-subtle pressures on minority female scholars to cast their scholarship in race-and gender-neutral terms. Austin proposes instead a legal jurisprudence grounded in the material conditions of the lives of the black women and their critiques of a society dominated by whites, males and the middle class. Austin applies her suggested approach to Chambers v. Omaha Girls Club, which dealt with the Girls Club's discharge of Crystal Chambers, an unmarried black employee who became pregnant. Austin's discussion is set in an interdisciplinary framework; she looks beyond the facts of the Chambers case to sociological and cultural studies with which to challenge the opinion's misconceptions regarding black teenage pregnancy, single motherhood and role modeling. Austin concludes by reiterating her plea that black female legal scholars use their positions and their skills to promote the social and political standing of all minority women.

I. WRITE-OUS'' RESISTANCE I grew up thinking that Sapphire was merely a character on the Amos n Andy program, a figment of a white man's racist/sexist comic imagination. 1 Little did I suspect that Sapphire was a more generally *540 employed appellation for the stereotypical BLACK BITCHtough, domineering, emasculating, strident, and shrill. 2 Sapphire is the sort of person you look at and wonder how she can possibly stand herself. All she does is complain. Why doesn't that woman shut up? Black bitch hunts are alive and well in the territory where minority female law faculty labor. There are so many things to get riled about that keeping quiet is impossible. We really cannot function effectively without coming to terms with Sapphire. Should we renounce her, rehabilitate her, or embrace her and proclaim her our own? There are a whole host of situations that minority female instructors encounter that convey in more or less subtle ways the undesirability of looking at the world through eyes that are Sapphire's, or Maria's, or Mai Ling's. I am really just addressing the minority women at this point. When was the last time someone asked you to choose between being a woman and being a minority person or asked you to assess the hardships and the struggles of your life in terms of your being a woman on top of being black (or whatever color you are) or a black on top of being a woman, as if being a woman or being black were like icing on a cake? As if you and your kind were not an integrated, undifferentiated, complete whole with a consciousness and politics of your own. As if you should be content to be a foot soldier in someone else's army of liberation. As if the ring leader should not be a person like yourself doubly and affectively bound to the community of the oppressed. Of course, to insist on your own vision would be divisive, and you don't want to be divisive, do you?

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Brooks, Hannah 1/10/2014 For Educational Use Only

SAPPHIRE BOUND!, 1989 Wis. L. Rev. 539

When was the last time someone told you that your way of approaching problems, be they legal or institutional, was all wrong? You are too angry, too emotional, too subjective, too pessimistic, too political, too anecdotal, and too instinctual. 3 I never know how to respond to such accusations. How can I legitimate my way of thinking? I know that I am not just flying off the handle, seeing imaginary insults and problems where there are none. I am not a witch solely by nature, but by circumstance and choice as well. I suspect that what my critics really want to say is that I am being too self-consciously black (brown, yellow, red) and/or female to suit their tastes and should lighten up because I am making them feel very uncomfortable, and that is not nice. And I want them to think that I am nice, don't I? *541 When was the last time you had a student who wanted to write a paper on a topic having to do with the legal problems of minority women, and you had precious little to offer in the way of legal articles or commentary that might be on point? 4 You especially regretted your limited ability perhaps to challenge her bourgeois orientation and to acquaint her with alternative nationalistic or feminist perspectives. And your next response was to curse the powers that be. Toni Morrison, 5 Alice Walker, 6 Louise Erdrich, 7 and Maxine Hong Kingston 8 write about the lives of minority women and manage to sell books, whereas minority female legal scholars have every reason to believe that almost no one is interested in the legal problems of minority women, certainly not enough to reward scholarly investigations of them with tenure, promotions, and such. If you did attempt to do it, who could help you, and if you actually did pull it off, who would evaluate it favorably? Suppose that at last you actually got around to considering the impact of law on the lives of minority women. You would have to decide whether you too will portray them as helpless, powerless, troubled souls, woefully in need of legal rights and remedies. You know that is not the entire story. 9 Minority women as the pathology of the society does not capture the dignity, righteous resistance, and practical endurance that are ingrained in our cultures. Minority women do amazing things with limited resources, are powerful in their own communities, 10 and, not unlike Sapphire, can mount scathing critiques of the sources of their oppression. 11 Yet, the enormity of the task of capturing the complexity of their legal status and of translating their concerns into those that the legal scholarly community recognizes makes it an unrealistic *542 endeavor for you, given the demands on your time and talent. Somehow other people are always setting your agendaeither by making positive requests that you just cannot refuse or by provoking you to act in defense of yourself, your students, your colleagues, or your entire race. 12 With your commitments, a manual of ten thousand ways to say no would not be of much help. After all, you want to do what you really feel you must do, don't you? Well, I think the time has come for us to get truly hysterical, to take on the role of professional Sapphires in a forthright way, to declare that we are serious about ourselves, and to capture some of the intellectual power and resources that are necessary to combat the systematic denigration of minority women. It is time for Sapphire to testify on her own behalf, in writing, complete with footnotes. 13 To testify means several different things in this context: to present the facts, to attest to their accuracy, and to profess a personal belief or conviction. The minority feminist legal scholar must be a witness in each of these senses. She must document the material legal existences of minority women. Her work should explore their concrete problems and needs, many of which are invisible even to minority lawyers because of gender and class differences. Moreover, a synthesis of the values, traditions, and codes that bind women of the same minority group to one another and that fuel their collective struggle is crucial to the enterprise. The intellectual product of the minority feminist scholar should incorporate in a formal fashion the ethical and moral consciousnesses of minority women, their aspirations, and their quest for liberation. Her partisanship and advocacy of a minority feminist jurisprudence should be frankly acknowledged and energetically defended. Because her scholarship is to be grounded in the material and ideological realities of minority women and in their cultural and political responses, its operative premises must necessarily be dynamic and primarily immanent; as the lives of minority women change, so too should the analysis.

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Brooks, Hannah 1/10/2014 For Educational Use Only

SAPPHIRE BOUND!, 1989 Wis. L. Rev. 539

Finally, the experiential is not to be abandoned by the minority female legal scholar. She must be guided by her life, instincts, sensibility, *543 and politics. 14 The voice and vision reflected in her work should contain something of the essence of the culture that she has lived and learned; 15 imagine, if you can, writing a law review article embodying the spontaneity of jazz, the earthiness of the blues, or the vibrancy of salsa. 16 I have given some thought to the tenets that a black feminist or womanish 17 legal jurisprudence might pursue or embrace. Other approaches are imaginable, and I hope that this essay will encourage or provoke their articulation. M isty humanism and simplistic assertions of a distinguishable ... cultural and discursive practice are not adequate. 18 Begging won't get it either: I am not sappy and do not care whether white men love me. I can think of nothing more debilitating than thinking ourselves dependent upon the good will and civility of those in a position to oppress us. While it is important to build coalitions with whites of both sexes and other people of color, black women will not prosper from them if we entirely muffle our indignation and negotiate as mere supplicants. Oh, no! We have paid our dues, done more than our share of the doing and the dying, and are entitled to prosper with everyone else. We must write with an empowered and empowering voice. The chief sources of our theory should be black women's critiques of a society that is dominated by and structured to favor white men of wealth and power. We should also find inspiration in the modes of resistance black women mount, individually and collectively, on a daily basis in response to discrimination and exploitation. Our jurisprudence should *544 amplify the criticism and lend clarity and visibility to the positive transformative cultural parries that are overlooked unless close attention is given to the actual struggles of black women. In addition, our jurisprudence should create enough static to interfere with the transmission of the dominant ideology and jam the messages that reduce our indignation, limit our activism, misdirect our energies, and otherwise make us the (re)producers of our own subordination. By way of an alternative, a black feminist jurisprudence should preach the justness of the direct, participatory, grass-roots opposition black women undertake despite enormous material and structural constraints. A thoroughly critical stance, high standards, and a sharp focus are absolutely essential to our scholarly mission. Whatever we do must be analytical and rigorously researched and reasoned, not to convince and please those who have the power to control our professional advancement, but to repay the debt we owe our grandmothers, mothers, and sisters whose invisibility and marginality we aim to ameliorate. Although critiques of the racism of white feminists and the sexism of male race persons are useful, 19 to my way of thinking they can be an abdication of the responsibility to shape an affirmative agenda that makes the lives of real black women the central focus. 20 Our scholarship must be accessible to an audience of black female law students, legal scholars, practitioners, and nonlegal activists. They are likely to be both sources of politically pragmatic criticism and progmmatic grounding, and informants as to the authentic, spontaneous, imaginative counterhegemonic moves being made by black women fighting racial, sexual, and class oppression on the front lines of their everyday lives. As scholars, we in turn can aid their political mobilization with lucid analyses that offer broad and cogent perspectives of the structural constraints that produce their subordination and the material openings that must be exploited if further freedom is to be achieved. 21 It is imperative that our writing acknowledge and patently reflect that we are not the voices of a monolithic racial/sexual community that does not know class divisions or social and cultural diversity. This recognition should check the basically conservative impulse to rely on generalizations about racism and sexism that are the product of our own *545 experiences. 22 It should also make us vigilant about lapsing into outrageous themes which suggest that black people are united by biological essences that produce in all of us a refined instinctive sense of justice. 23 Our positions as scholars set us apart to some extent from the women about whom we write, and our work would be better if we acknowledged the distance and attempted to bridge it. For a start, we must accept that there is skepticism about both the law and intellectual pursuits 24 in our communities. It

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Brooks, Hannah 1/10/2014 For Educational Use Only

SAPPHIRE BOUND!, 1989 Wis. L. Rev. 539

accordingly behooves us to eschew the role of self-anointed spokespersons for our race and sex and instead take our lead as teachers and scholars from the ongoing liberation politics of black women. Moreover, we must be responsive to the attacks that are leveled against us as well-paid, relatively assimilated professionals. As we are validly critiqued, so should we critique. We are obliged, therefore, to look at the needs and problems of black women to determine the role black elites (male and female) have played in their creation or perpetuation. 25 Similarly, in seeking jurisprudential reference points in the wisdom of black women at the bottom of the status hierarchy, 26 we must reject the romanticization of their difference. It is patronizing, tends to support our position as intermediaries, and ignores the role that state-tolerated violence, material deprivation, and the dominant ideology play in minority cultural production. We must not be deterred from maintaining a critical stance from which to assess what black women might do to improve their political and economic positions and to strengthen their ideological defenses. At the same time, however, we must scrupulously avoid the insensitive disparagement of black women that ignores the positive, hopeful, and life-affirming characteristics of their actual struggles, and thereby overlooks the basis for more overt political activity. Our contributions will not be divisive to the cause of the liberation of minority peoples and women if our scholarship is based on the concrete, material conditions of black women. Anti-racist or anti-sexist scholarship that is overinclusive and abstract is dangerous because it *546 misconceives the often knotty structural nature of the conditions that are its subject. In addition, such scholarship frequently reflects the assumption that oppressed groups are pitted against one another in a competition for scarce attention and resources, with the victory going to the most downtrodden. (I call this phenomenon the running of the oppression sweepstakes.) For example, the much-touted concept of the feminization of poverty would be fine if it did not obscure the reality that poverty varies with race, has a class dimension, and in many minority communities afflicts both sexes. 27 Black women in particular have much to gain from efforts to understand the complexity of the interaction of race, sex (including sexual orientation), and class factors in the creation of social problems. 28 The mechanics of undertaking a research project based on the concrete material and legal problems of black women are daunting. The research is hard to do, but I believe it can be done. I have twice embarked on such projects. My first effort concerned industrial insurance, the rip-off life insurance with the small face amounts that my mother and grandmother purchased. 29 I was stymied because of a lack of information going beyond my own experience regarding the motivations that prompt poor black people to spend so much for essentially burial protection. I have more nexus with, respect for, and intellectual curiosity about the cultures of poor black people than to mount a scholarly project on the assumption that the women in my family are typical of the whole. The second project grew out of my interest in the causes of excess death in minority communities or what is the unacknowledged genocide of the poor black, brown, and red peoples of America. 30 I *547 decided to start with the problem of infant mortality. The infant mortality rate for blacks was 18.2 per 1,000 live births in 1985 as compared with 9.3 per 1,000 live births for whites. 31 I thought that I would begin by examining the extent to which the vilification of the cultural modes and mores of low-income minority females affects the prenatal care they receive. The inquiry would then extend to the role the law might play in curbing the mistreatment or non-treatment of pregnant women of color. I have not entirely abandoned this one. The problems these projects involve are difficult because they do not begin with a case and will not necessarily end with a new rule. The world with which many legal scholars deal is that found within the four corners of judicial opinions. If the decisions and the rubrics they apply pay no attention to race, sex, and class (and the insurance and malpractice cases generally do not), then the material conditions of minority females are nowhere to be found, and the legal aspects of the difficulties these conditions cause are nearly impossible to address as a matter of scholarly inquiry. It is thus imperative that we find a way to portray, almost construct for a legal audience, the contemporary reality of the disparate groups of minority women about whom we write. We really cannot do this without undertaking field research or adopting an interdisciplinary approach, relying on the empirical and ethnographic research of others. The latter route is the one that I have taken in this Article and elsewhere. 32

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Brooks, Hannah 1/10/2014 For Educational Use Only

SAPPHIRE BOUND!, 1989 Wis. L. Rev. 539

Interdisciplinary research provides additional benefits. It gets one out of the law school and among scholars who are supportive and receptive to modes of analysis that are not Eurocentric or patriarchal. I have found that academics from other parts of the university where I *548 teach supply the intellectual community, stimulation, and encouragement that are essential to doing research. Furthermore, black scholars from other disciplines have provided me with useful strategies for dealing with the hostility my intellectual agenda might evoke. Looking at legal problems against the context of non-legal perspectives has its dangers. The legal scholar's obligation to take the law seriously generally requires that her writing be legalisticthat she show the inadequacy of the existing rules, and either propose clever manipulations of the doctrine that overcome the weaknesses exposed by her critique or draft model legislation. This approach tends to collapse the inquiries into what black people need and want, and what they are likely to get, into one. The conservatism that is an inherent part of traditional doctrinal legal analysis can be a stifling handicap for the black female researcher. Speculation concerning proposals that are not rule-bound and lawyer-controlled (like, for example, strategies by which poor women might increase their power to shape the gynecological services provided by health care facilities ostensibly serving them) 33 seems beyond the pale. That is utopian politics, not law or legal scholarship. Of course, black people get almost nowhere in terms of gaining and enforcing legal entitlements without also exercising their political clout or scaring white people. (Truly powerless people do not get rights on account of their helplessness, and the rights they do get are protected only so long as they are backed up by the threat of disruption.) Thus, the black feminist legal scholar must be able to think political and talk legal if need be. Her pedagogical mission should extend to educating black women about the political significance of their ordinary lives and struggles. She must translate their frustrations and aspirations into a language that both reveals their liberatory potential and supports the legal legitimacy of their activism and their demands. *549 The remedies we contemplate must go beyond intangibles. We must consider employing the law to create and sustain institutions and organizations that will belong to black women long after any movement has become quiescent and any agitation has died. Full utilization of the economic, political, and social resources that black women represent cannot depend on the demand of a society insincerely committed to an ethic of integration and equal opportunity. Implementation of an agenda for black feminist legal scholarship and expanded study of the legal status of minority women in general will require the right sort of environmental conditions, such as receptive or at least tolerant non-minority publishers and a network of established academics engaged in similar pursuits. We minority female scholars must devote a bit of our sass to touting the importance of the perspective of minority women and the significance of their concerns to any list of acceptable law review topics. If anyone asks you to talk or write about anything related to your race or your sex, turn the opportunity into one for exploring the legal concerns of women of color. This essay, for example, grew out of an invitation I received to address a conference for women in law teaching on the subject of my experiences as a black female legal academic. The talk was listed under the general topic Double Binds: Managing Your Several Roles. The term double binds evokes images of multiple restraints, redundant bondage, a no-win situation. It is not one that I as a black woman in America can lightly associate with myself. Our history is one of struggle and resistance, and the fight continues. Bound, however, has many meanings that better capture my actions, attitudes, and aspirations than tied down: to be attached or devoted to; to move by leaps; to be on the way; to be under a legal or moral obligation; and to secure within the covers of a book. I am not a Pollyanna and I am as pessimistic and cynical as can be. I simply refuse to be doubly or triply bound in the negative sense of the term by a racist, sexist, and class-stratified society without its hearing from me.

II. A SAPPHIRE NAMED CRYSTAL

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Brooks, Hannah 1/10/2014 For Educational Use Only

SAPPHIRE BOUND!, 1989 Wis. L. Rev. 539

The task of articulating and advancing distinctive minority feminist jurisprudential stances will become easier as those of us interested in the status of minority women begin to analyze concrete cases and legal problems. To substantiate my point that a black feminist perspective can and must be made manifest, I have attempted to apply the *550 rough, tentative thesis I advance above to the examination of a particular decision, Chambers v. Omaha Girls Club. 34 The plaintiff, Crystal Chambers, was employed by the defendant Girls Club of Omaha (the Club) as an arts and crafts instructor at a facility where approximately ninety percent of the program participants were black. 35 Two years later, Chambers, an unmarried black woman in her early twenties, was discharged from her job when she became pregnant. 36 Her dismissal was justified by the Club's so-called negative role model rule which provided for the immediate discharge of staff guilty of n egative role modeling for Girls Club Members, including such things as single parent pregnancies. 37 In her lawsuit, Crystal Chambers attacked the role model rule on several grounds. In her Title VII claims, for example, she maintained that the rule would have a disparate impact on black women because of their significantly higher fertility rate. 38 She further asserted that her discharge constituted per se sex discrimination barred by the Pregnancy Discrimination Act of 1978. 39 Although the soundness of these arguments was acknowledged, 40 they were effectively countered by the business necessity 41 and the bona fide occupational qualification defenses. 42 The district court ruled against Crystal Chambers because it concluded that the Club's role model rule was the product of its dedication to the goal of helping young girls reach their fullest potential. 43 Programmatic concerns provided adequate support for the rule. According to the findings, the Club's activities were characterized by a high staff to member ratio, extensive contact and close relationships between the staff and members, and an open, comfortable atmosphere. 44 Model behavior by the staff and imitation by the members were essential to the Club's agenda: Those closely associated with the Girls Club contend that because of the unique nature of the Girls Club's operations, *551 each activity, formal or informal, is premised upon the belief that the girls will or do emulate, at least in part, the behavior of staff personnel. Each staff member is trained and expected to act as a role model and is required, as a matter of policy, to be committed to the Girls Club philosophies so that the messages of the Girls Club can be conveyed with credibility. 45

The Club's goal was to expose its members to the greatest number of available positive options in life. 46 T eenage pregnancy was contrary to this purpose and philosophy 47 because it severely limit s the available opportunities for teenage girls. 48 Citing plaintiff's expert, the court stated that t eenage pregnancy often deprives young women of educational, social and occupational opportunities, creating serious problems for both the family and society. 49 The Club had several programs that related to pregnancy prevention. 50 In the opinion of the district court, the Club established that it honestly believed that to permit single pregnant staff members to work with the girls would convey the impression that the Girls Club condoned pregnancy for the girls in the age group it serves. 51 Furthermore, w hile a single pregnant working woman may, indeed, provide a good example of hard work and independence, the same person may be a negative role model with respect to the Girls Club objective of diminishing the number of teenage pregnancies. 52 The Club pointed to the reaction of two members to the earlier pregnancies of other single staffers in accounting for the genesis of the rule. In one case, a member who stated that she wanted to have a baby as cute as that

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Brooks, Hannah 1/10/2014 For Educational Use Only

SAPPHIRE BOUND!, 1989 Wis. L. Rev. 539

of a staff member became pregnant shortly thereafter. In the second, a member became upset upon hearing of the pregnancy of an unmarried staff member. 53 As painted by the court, there were numerous indications that the operative animus behind the role model rule was paternalistic, not racist or sexist. The North Omaha facility was purposefully located to better serve a primarily black population. 54 Although the Club's principal administrators were white, 55 the girls served were black, 56 the *552 staff was black, 57 and Crystal Chamber's replacement were black. 58 G reat sensitivity was shown to the problems of the staff members, including those who were black, pregnant, and unmarried. 59 Plaintiff was even offered help in finding other employment after she was fired. 60 The district court concluded its opinion as follows: This Court believes that the policy is a legitimate attempt by a private service organization to attack a significant problem within our society. The evidence has shown that the Girls Club did not intentionally discriminate against the plaintiff and that the policy is related to the Girls Club's central purpose of fostering growth and maturity of young girls.... The Court emphasizes, however, that this decision is based upon the unique mission of the Girls Club of Omaha, the age group of the young women served, the geographic locations of the Girls Club facilities, and the comprehensive and historical methods the organization has employed in addressing the problem of teenage pregnancy.... 61

There were dissenting views among the Eighth Circuit judges who considered the case. 62 In opposing the judgment in the Club's favor, Judge McMillian demanded hard evidence to support the legality of the negative role model rule: Neither an employer's sincere belief, without more, (nor a district court's belief), that a discriminatory employment practice is related and necessary to the accomplishments of the employer's goals is sufficient to establish a BFOQ or business necessity defense. The fact that the goals are laudable and the belief's sincerely held does not substitute for data which demonstrate a relationship between the discriminatory practice and the goals. 63

A. For those who have no understanding of the historical oppression of black women and no appreciation of the diversity of their contemporary cultural practices, the outcome of the Chambers case might have a *553 certain policy appeal, one born of sympathy for poor black youngsters and desperation about stemming the epidemic of teenage pregnancy that plagues them. 64 According to such an assessment, the Club's hope that its members could be influenced by committed counselors who, by example, would prove that life offers more attractive alternatives than early pregnancy and single parenthood was at worst benign, if it was not benevolent. But for better informed, more critical evaluators, the opinions are profoundly disturbing. Firing a young unmarried, pregnant black worker in the name of protecting other young black females from the limited options associated with early and unwed motherhood is ironic, to say the least. The Club managed to replicate the very economic hardships and social biases that, according to the district court, made the role model rule necessary in the first place. 65 Crystal Chambers was not much older than some of the Club members and her financial and social status after being fired was probably not that much different from

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Brooks, Hannah 1/10/2014 For Educational Use Only

SAPPHIRE BOUND!, 1989 Wis. L. Rev. 539

what the members would face if they became pregnant at an early age, without the benefit of a job or the assistance of a fully employed helpmate. On the other hand, she was in many respects better off than many teen mothers. She was in her early twenties and had a decent job. Chambers' condition became problematic because of the enforcement of the role model rule. The material consequences that befell Crystal Chambers, and that plague other black women who have children despite their supposed role modeling responsibilities, are not inherent by-products of single pregnancy and motherhood. The condemnation and the economic hardships that follow in its wake are politically and socially contingent. Furthermore, they are not the product of a consensus that holds across race, sex, and class boundaries. Judged by the values and behavior that are said to be indigenous to low-income, black communities of the sort from which the Club members *554 came, 66 sacking pregnant unmarried Crystal Chambers was not a womanly move. It was cold. The Club's actions stand in stark contrast to the tolerance pregnant teens and young single mothers report receiving from their female relatives and peers. 67 Altough disapproving of teenage pregnancy, black culture in general does not support abandoning the mothers or stigmatizing their offspring. Allowing for cultural heterogeneity, it is entirely possible that the black people of Omaha approved of the Club's actions. By and large, however, excluding young mothers and their children from good standing in the community would not strike most black women as being fair, feasible, or feminine. This perspective is informed by a broader understanding of the exaggerated hostility that is generated by the pregnancies of poor, young, unmarried black females whose customs and conventions concerning childbearing and motherhood diverge from those of the mainstream. Because essentialist notions suggest that they cannot be harmed by those who are of the same gender and/or race, these females are vulnerable to the insidiously detrimental ministrations of do-good white women and bougie 68 blacks. Moreover, middle-aged meddlers of every sort feel themselves entitled to heap upon these females a wisdom that has little to recommend it beyond the fact that its proponents have lived longer. If young unmarried black pregnant workers are to be adequately protected, the pregnancy discrimination law, in conjunction with provisions directed at racial and sexual oppression, must assure them working conditions that acknowledge the reproductive norms not only of females as opposed to males, 69 but also of blacks as opposed to *555 whites, of the young as opposed to the old, and of poor and working folks as opposed to the middle class. Implicit in the Chambers decision, however, is an assumption that the actual cultural practices and articulated moral positions of the black females who know the struggles of early and single motherhood firsthand are both misguided and destructive. The older women are apparently so outrageous that they represent a grave threat to their own daughters. Yet, for some of us, their portrayal in the Chambers opinions is more flattering than the authors intended. Grounded in a culture that turns bad (pronounced baaad) on its head 70 and declares conduct that offends the white, male, and middle-class establishments, wily, audacious, and good, a black feminist scholar has to wonder whether the villainous black women one discerns lurking in the interstices of the opinions are not doing something right. A black feminist jurisprudential analysis of Chambers must seriously consider the possibility that young, single, sexually active, fertile, and nurturing black women are being viewed ominously because they have the temerity to attempt to break out of the rigid economic, social, and political categories that a racist, sexist, and the classstratified society would impose upon them. Although the outcome hinged upon it, the opinions are awfully vague about the adverse effect continued employment of an unmarried pregnant arts and crafts instructor would have had in promoting teenage pregnancy among the young black Club members. I want to suggest a few possible relationships whose plausibility is attributable to a deep suspicion of black women's sexuality and an intense desire to control their excessive promiscuity and fecundity. The first is reminiscent of a bad joke. The Club and the courts conceivably subscribe to a theory of reproduction, that can only be termed primitive, which posits that simply seeing an unmarried pregnant woman can have such a powerful impact on adolescent females that they will be moved

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Brooks, Hannah 1/10/2014 For Educational Use Only

SAPPHIRE BOUND!, 1989 Wis. L. Rev. 539

to imitate her by becoming pregnant themselves. 71 If the girls are poor and they and the woman are black, such a hypothesis might be given credence in some quarters. Under it, Crystal Chambers' mere pregnant presence at the Club would be considered a corrupting influence in light of the Club's goals. Surely, the Club and the courts do not believe that black teenage pregnancy is the product of social voyeurism or a female variant of reckless eyeballing. 72 *556 It is more likely that unmarried, pregnant Crystal was thought to be a problem because she functioned as an icon, a reminder of a powerful culture from which the Club members had to be rescued. The Club was supposed to be a wholesome haven where young black girls would be introduced to an alternative array of positive life choices. Crystal Chambers tainted the environment by introducing into it the messy, corrupting cultural orientations that were the target of the Club's repress and replace mission. There is a widespread belief that poor black women who raise children alone in socially and economically isolated enclaves encourage teenage pregnancy by example, subsidize it through informal friendship and extended family networks, and justify it by prizing motherhood, devaluing marriage, and condoning welfare dependency. 73 Operating on similar assumptions, the Club set about exposing (literally it seems) its young members to counterimages that would act as antidotes to the messages they absorbed at home. In a newspaper story concerning Chambers' lawsuit, the attorney for the Club stated that while there was no intent to condemn any parent of these girls or any of the parent's life decisions, the Club did undertake to introduce the young members to alternatives that were different from those of the girl's home life. 74 The attorney continued, We're trying to say that at age 14, girls aren't necessarily emotionally mature enough to make the decision to voluntarily get pregnant. Their parents may have been. 75 The Omaha World-Herald ran an editorial in support of the firing that continued the theme. The editorial states: The absence of strong family structures among many poor blacks has long been identified as a major obstacle to blacks' entering the mainstream. A high rate of out-of-wedlock pregnancies among poor blacks contributes both to the perpetuation of the poverty cycle and to the weakness of families caught in that cycle. 76 *557 The editorial further argues that if, as Crystal Chambers asserted. half the girls at the club have mothers who aren't married,DD that is one of the reasons the dismissal policy makes the sense. 77

This assessment of the dangerousness of the mothers whose ranks Crystal was about to join attributes to black teenagers a level of passivity not often associated with adolescence. Looking to their parent's cultural orientations to explain teenage pregnancy may be giving the teens too little credit for attempting to shape the course of their own lives. It also attributes too much power to parents whose economic and social standing renders them impotent to control either their children's life chances or lives. Furthermore, the Club's conduct is indicative of the way in which the battle to curb black teenage pregnancy via the use of role models has become a pretext for continuing and expanding the economic and ideological war on unwed black mothers. The stress on the impact on teenage pregnancy of single middle-class role models who opt to have children is furnishing the opportunity to add a new twist to the historical efforts to ridicule and control black women's sexuality and reproduction. Although Crystal Chambers' firing was publicly justified on the ground that she would have an adverse impact on the young Club members, it is likely that the Club in part sacked her because she resisted its effort to model her in conformity with white and middle-class morality. In its struggles against the culture of the girl's mothers, Crystal Chambers, employee and arts and crafts instructor, was supposed to be on the Club's side. But like a treasonous recruit, Crystal turned up unmarried and pregnant. As such, she embodied the enemy. If the Club could not succeed in shaping and restraining the workers whose economic welfare

2014 Thomson Reuters. No claim to original U.S. Government Works.

Brooks, Hannah 1/10/2014 For Educational Use Only

SAPPHIRE BOUND!, 1989 Wis. L. Rev. 539

it controlled, how could it expect to win over the young members and supplant their mothers' cultural legacy. The requirement that one allow one's self to be modeled in order to keep one's job is not limited to blacks who are young fertile females. To a certain extent, the trouble Crystal Chambers encountered is a generic infliction suffered by black role models on both sexes and all ages who reject the part and become rebellious renegades or traitors to the cause of black cultural containment. In sum, then, faulty conceptions of role modeling lie at the heart of the policy basis of the Chambers decision. In the sections that follow, I elaborate on the themes outlined above. Poor black teenagers who become pregnant are doing more than merely mimicking their mothers. In Part B, I illustrate this by considering the sociological data that identifies the material conditions and cultural practices which are correlated *558 with black adolescent pregnancy. In Part C, I explore the contemporary effort to control the sexual and reproductive freedom of single black mothers who are said to be role models by blaming them for increased black teenage pregnancy. I explore parallels between the parts that model black women are supposed to play and historical stereotypes of black females as workers and sexual beings. In Part D, I question the propriety of blacks' accepting the guise of model assimilationists.

B. Aside from the occasional piece that accuses black adolescents of absolute perversity, 78 news accounts and academic literature generally portray black teens who are pregnant or already parents as pursuing private, ad hoc solutions to pervasive systemic economic and political powerlessness. Teenage pregnancy is the product of the complex interaction of, not only culture and individual adjustment, but also material conditions which present black teens with formidable obstacles to survival and success. Black adolescents whose families are of low socioeconomic status are at greater risk of becoming teenage mothers than their middle-and upper-class peers. 79 Teenage pregnancy is correlated with the lack of success these black adolescents experience in dealing with institutions that should provide them with an entree to the society beyond the confines of their communities. Blame for black teenage pregnancy must be shared by an educational system that fails to provide black youngsters with either the desire or the chance to attend college, 80 a labor market that denies them employment which will supply the economic indicia of adulthood, 81 and a health care system that does *559 not deliver adequate birth control, abortion, or family planning services. 82 The impact of these structural factors does not make the problems constricting the lives of black adolescents entirely beyond their locus of control, however. The cultures of poor young blacks play a role in the reproduction of their material hardship. Their cultures also have strengths and virtues. Yet, even persons sympathetic to black females like the Club members, their mothers, and Crystal Chambers may have a hard time identifying anything positive and liberating about the modes and mores that produce black teen pregnancy and single motherhood. The need to highlight the affirmative while conceding the negative is quite pressing. Strong and complex identification with one's culture and community is necessary not only for survival but for a positive sense of self, and for the making of an involved and active community member. 83 To be efficacious, that identification must be critical of all the elements that prevent black teens from improving their economic, social and political circumstances. To the extent that it is, it deserves affirmation from sympathetic supporters. In addition, it is imperative that those who broadly denigrate poor young black mothers be engaged in debate. A critical perspective held by the mothers themselves would provide the strongest possible basis for a counterattack. Articulating a defensible position regarding adolescent pregnancy and motherhood requires precise information about the actual contemporary customs and attitudes of black teenagers. There is no single lifestyle or perspective that unites all black teenagers who find themselves pregnant or parents. It may well be that, in certain cases, they are motivated by orientations concerning sexuality and parenthood passed down from one generation to another. For example, Leon Dash, who lived among poor blacks in Washington D.C.'s Anacostia section, found that the urban progeny of former sharecroppers were affected by traditions tied

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to the demands of an agrarian economy which required the labor of children. 84 Mores favoring adolescent pregnancy and stigmatizing infertility that were once dictated by material necessity persist ed as measurements of one's self-worth. 85 By and large, investigators who have considered teens in various urban communities across the country suggest that they are responding *560 to their unique material and social circumstances with conventions that seem to be of their own devising. The object is to make their lives better through means within their power. This passage from Daniel Frank's Deep Blue Funk & Other Stories 86 (which is based on Frank's work in Evanston, Illinois) summarizes the typical explanations: Being pregnant means being the center of attention, wanting to keep a boyfriend, or wanting to create something special. Getting a girl pregnant is often an attempt to prove to peers and parents that one is a man.... A teenager wants to have a baby in order to feel important and dignified, to feel good about herself because she has not felt good enough before. Becoming a parent is an attempt to secure intimacy, love, and safety, to claim identity and a new status. Or, it may be an attempt to save one's family from violence, separation, or divorce by creating a crisis around which the whole family must unite. 87

Teenage pregnancy is a product of the teens' contradictory pursuit of romance, security, status, freedom, and responsibility within the confines of their immediate surroundings. The black urban adolescent culture described by sociologist Elijah Anderson, whose research was conducted in Philadelphia, 88 is one in which young men and women manipulate each other because they have little influence over external circumstances. [G]irls and boys alike scramble to take what they can from each other trusting, not in each other but often in their own ability to trick the other into giving them something that will establish or perpetuate their version of the good life, the best life they feel they can put together for themselves in the innercity social environment. 89 For the females, sex is a means of capturing the affection, exclusive attention, and potential lasting economic assistance of a male partner. 90 Enmeshed in dreamy notions of settling down with a good man, raising a family, and having a fine home, the females endeavor to make a soap opera of real life. 91 For the males, sexual conquests substitute for successful economic engagement outside of the confines of the community. *561 92 Casual sex with as many women as possible, impregnating one or more, and getting them to have your baby brings a boy the ultimate in esteem from his peers and makes him a man.DD 93 Status is accorded to those who make a fool out of the ladies and creatively avoid efforts to make them play house. 94

Parenthood does not always produce the results the teenagers hoped for prior to the birth of the child. Writes Frank of his informants: Too late they learn that being a parent is different from being pregnant. Feelings change; the reality only becomes clear upon giving birth.... Becoming a parent ... means sharing or even losing that centerstage spotlight to the baby; it means being a mother when one still needs to be mothered; it means discovering one's lack of the financial and emotional resources to live up to the vision of what a real man, a real father does. 95 Statistically speaking, teenage pregnancy is associated with a litany of economic and social disadvantages and adverse physical and psychological consequences for both mothers and children. 96 Pregnancy and motherhood are problematic for black teenagers and young adults in part because y ounger mothers tend to have less education, less work experience, and thus fewer

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financial resources. 97 Their economic status is weakened by the difficulty they encounter in securing child care 98 and child support. 99 Black babies are dying at an alarming rate and those born to adolescent mothers may be slightly more vulnerable. 100

*562 But then again, things could be worse. Being a mother is certainly better than committing suicide or getting hooked on drugs. 101 The young women often rise to the demands of the role of mother. 102 The responsibilities of motherhood, of having someone to care for and someone who cares for them, have a positive effect on them in terms of their schooling and commitment to the workforce. Young men are sometimes favorably affected as well. They provide whatever economic assistance they can. 103 Those who are gainfully employed take on the role of father and supporter. 104 In too many cases, the odds are against poor black adolescents, and the outcome of their sexual behavior is not in doubt. The females will be poor and overly burdened with responsibility. 105 The males will be poor and overly burdened with feelings of inadequacy. 106 The hardships will be more than they can overcome. To a certain extent, the adversity that they encounter is preordained because they and their parents do not control the material, social, and political resources that make for meaningful choice. Yet, these consequences are also the product of shared understandings and practices knowingly and voluntarily engaged in. The teenagers' cultures function in a way that make their ultimate oppression and subordination seem consensual. 107 Nonetheless, black teenagers are not simply pawns of the system. They create a culture of their own that is weighted with contradictions and ambivalence, promise and peril. They both accept and reject aspects of the culture of the dominant society which finds their behavior highly deviant, if not tragic. Moreover, the culture of the black adult community, which may be less disapproving, but seems no more helpful in aiding the teenagers to lead full and meaningful lives, is also selectively followed. For example, the teens' interest in romance and materialism reflects the influence of mass culture. 108 At the same time, having a child is a symptom of alienation, a rejection of the larger society's value system regarding what is rational and irrational behavior. 109 The adolescents' concern with familial responsibility is the product of their ties to past and future generations of poor black people. *563 110 They have also absorbed quasi-religious notions and folk wisdom that tell them that contraception poses medical risks or is unacceptable because it reflects an immoral conscious, premeditated decision to be sexually active. 111 At the same time, the powerlessness that afflicts their parents is something they criticize and would like to avoid. 112 What seems to be missing is a politicized assessment of the sources of that economic and social vulnerability. While some of their goals might be resistant and potentially liberating, the practices by which poor black teenagers pursue them are limited. Restricted to exploiting the factors at handthe welfare system, the underground economy, their parents, their children, and each otherpoor black teenagers become unintentional and effective accomplices of the forces that would confine them to marginal existences. On a personal or micro-level, poor black female adolescents need help in separating what it is that they want in the way of material and emotional security and familial and communal obligation from the means they presently employ to achieve them. 113 They need to confront the disparity between what they hope to achieve and the consequences that their cultural practices, in conjunction with their material conditions and the dominant ideology, produce. Fine and Zane note that when female students are encouraged to analyze the contradictions that organize their livesthe vast space between desire and reality their voices carry important critical insights into what is, and creative thoughts about what could be. 114 Their aspirations can provide the basis for the critique not only of the larger society but of their own cultural practices as well.

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On a societal or macro-level, those interested in the welfare of poor black female adolescents should develop mechanisms that expand their opportunities for achieving what they want, which will no doubt change as their material circumstances improve. Helping them to devote their energies to attacking the institutions and organizations that control the resources they need to survive and thrive should enlarge their sense of hope and power. 115 In the Chambers case in particular, *564 the courts should have been more concerned about chastising employers like the Club for restricting the employment opportunities of young unmarried black mothers than with reinforcing the Club's message that single pregnancies and parenthood are not appropriate modes of conduct for young black women. The Club's motives, and the means by which it undertook to further them, seem less lofty in light of the rationality of the choices that produce teenage pregnancy. The courts ignored the disparity between the Club's hopes for its members and the structural impediments to their achievement. Furthermore, the courts compounded the obstacles for the plaintiff and others by failing to relate the Club's position to those impediments, and by passing up an opportunity to condemn systemic racial, sexual, and economic injustice on behalf of young unmarried black mothers.

C. The Club is not alone in leveling the charge of negative role modeling against unmarried black adult pregnant women and mothers who are said to be adversely affecting adolescent black females. For example, at a congressional hearing on pregnancy among black teenagers, Marian Wright Edelman of the Children's Defense Fund suggested that consideration should be given to the conduct of (black and white) entertainment celebrities and non-teenagers who have children out of wedlock. 116 Said Edelman, W e must also remember the majority, two-thirds, of out-of-wedlock births in this Nation are to women over 20. Young women see the older generation do it. I think we need better moral examples. 117 Liz Walker, an unmarried black news anchorwoman in Boston, was extensively criticized for becoming pregnant and giving news interviews announcing her pregnancy in order to preempt speculation about her changing physical appearance. The New York Times reported that m any of the critics ... said, that as a black woman, Ms. Walker had a special responsibility as a role model for black teen-agers, who are responsible for a disproportionately large *565 share of out-of-wedlock births. 118 Carl Rowan, in a nationally syndicated column, mentioned the controversy, labeled teen parenthood a national social tragedy, and concluded that he could not see how a TV anchorwoman in Boston or anyplace else would feel comfortable adding to it. 119 Thus, the motherhood of unmarried adult black women is being treated as if it were a social problem inextricably linked with, if not causally responsible for, teenage pregnancy. Both the adolescents and the adults have in common the degeneracy of engaging in intercourse that produces babies that other people think they should not have. But beyond their shared profligate sexuality, it is not entirely clear what connects single adult mothers and pregnant women with the conduct of their teenage counterparts. The concern may be that unmarried adult pregnancies and motherhood prompt teens to believe that sex before marriage is morally acceptable. The Club, however, denied that its discharge of Crystal Chambers was based upon her premarital sexual activity. 120 Moreover, workers who were unwed mothers prior to the role model rule's promulgation were not subjected to punitive sanctions. It would be foolish, in any event, to expect abstinence on the part of all teens. Urging adolescents simply to say No may work just fine with respect to drugs; it is too much to think that the admonition will have as much efficacy when applied to premarital teenage sex. Black adolescent pregnancy is considered more problematic today because teen mothers are less likely to be married at the time that they give birth than ever before, 121 and the families of single black females are generally poorer than those of either wage-earning black males or dual wage-earning black couples. 122 In addition to moral and social tenets that prescribe marriage as a prerequisite to motherhood, economic concerns suggest that young black women should be discouraged from becoming pregnant because of their singleness. It may be thought that condemning unwed pregnancy in general will foster increased wedlock on the part of teens and adults alike, with a resulting improvement in the financial resources of black households. The

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goal is unlikely to be achieved with regard to teens, however, given the economic prospects of young black males. Moreover, marriage for pregnant *566 adolescents is correlated with dropping out of school, having more babies, and ultimately being divorced or separated. 123 A more reasonable alternative response to the impoverishment of black single parent families would involve bolstering the earning capacity and economic well-being of black female heads of households. Finally, the culture of poor black teens assigns a positive value to being pregnant 124 and tends to underestimate the emotional and physical perils of motherhood and the economic hardships of parenting. Perhaps it is assumed that if the cultural ethos more generally and strongly deprecated pregnancy unconnected with matrimony, unwed pregnancy would lose its attractive status, and the number of babies born to black teenagers would dramatically decline. Of course, a campaign directed against teenage pregnancy without regard to marital status might have the same effect. And as suggested above, the mechanisms of teen culture are too complex to justify the belief that denouncing single motherhood will translate into a change in adolescents' assessments of their own behavior. In any event, the condemnation of black unwed motherhood is so deeply embedded in mainstream thought that its invocation in connection with teenage pregnancy may be considered uncontroversial. Single black mothers get blamed for so much that there is little reason not to blame them for teenage pregnancy as well. The accusation of negative role modeling on the part of black single mothers represents an extension of long-standing indictments that are the product of the unique variants of patriarchy that apply to black women alone. Poor and low-income black females who have children, maintain families of their own, and for whatever reason (whether because of choice or necessity) head households of their own have been labeled matriarchs. 125 In the mid-1960s, Daniel Patrick Moynihan argued that the matriarchal structure of the black family was an aspect of the tangle of pathology gripping the Negro community because it seriously retards the progress of the group as a whole, and imposes a crushing burden on the Negro male and, in consequence, on a great many Negro women as well. 126 After the Moynihan Report, the term matriarch became *567 a slur even among blacks, an accusation that a woman was both anti-male and antiblack. 127 Matriarchs are disloyal to the black men with whom they share the common experience of racial oppression because they deny the men the opportunity to assert a semblance of masculine supremacy in a context that white people theoretically do not control. In addition, matriarchs are traitors to the cause of black liberation, the success of which depends on black males, first before others, securing parity of status with white men. More contemporary appraisals of black single motherhood also pit black women against black men as well as each other and continue to leave black women hard pressed to articulate satisfactory justifications for their solo family formation. For example, the reality of the demographics of the black community suggest that there is a limited pool of eligible men for black women to marry. In 1986, there were 100,000 more black females between the ages of twenty and twenty-four than there were black males, 128 and the ratio of males to females declined for each succeeding cadre at a faster rate than it did for whites. 129 Social scientists have concluded that there is a qualitative disparity between the socioeconomic status of black women and men which exacerbates the quantitative difference that the gross numbers reflect. In The Truly Disadvantaged, William Julius Wilson and Kathryn Neckerman hypothesize that the shortage of employed and, in their assessment, marriageable males is the principal factor accounting for the increased percentage of black female-headed families. 130 Low-income men with jobs are more likely to marry the mothers of their children than those without work. 131 Increasing rates of unemployment coupled with high male mortality and incarceration rates reduce the number of black males who are available and capable of supporting a family and thereby reduce the options of black women with regard to family structure. 132 The emphasis on the marriageability of black men or their financial usefulness to a nuclear family exposes black women to attack on the grounds that they are insufficiently concerned about what racism and economic exploitation do to black men (their brothers, sons, and lovers) who, unemployed, incarcerated, or dead, are not of much use to *568 themselves. Moreover,

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stressing the worsening economic position of black males as the prime reason for the increase in female-headed families is too often taken to be an endorsement of patriarchy as a normative ideal. As a result, changes in the socioeconomic status of black males are gauged in terms of their parity with black females as opposed to more favorably situated white males, and advances by black women are seen as being at black men's expense. 133 Other analyses of black single motherhood set up a conflict along both gender and class lines. The current hysteria over negative role modeling extends the stigma of unwed pregnancy and motherhood that has long plagued black women of the lower classes to those who are older (arbitrarily over 24), highly educated, and middle-class. Their economic security and emotional maturity, however, arguably make it reasonable for them to undertake the responsibilities of single parenthood. The ratio of males to females is particularly low if educational attainment is considered. Moreover, because unwed motherhood has become a more acceptable option for white middle-class women, comparably situated black females have reason to resent restrictions on their reproductive choices. Denigrators espousing a supposedly black perspective should have a ready response to each of these points, inasmuch as the indictment of middle-class blacks who remain single applies equally well to middle-class black women who become unwed mothers. The single female parents too can be accused of assimilating white values that are not in keeping with the needs of the race. 134 The black community cannot possibly develop when its most educated members fail to marry. 135 Moreover, it is doubtful that individualistic singlehood and parenthood are a luxury that an oppressed racial minority can afford. 136 Black children need to be reared and socialized in strong nuclear families. 137 If middle-class women cannot find suitable mates, it is likely that they are being too choosy since black women have historically selected as partners men who do not possess comparable academic credentials. 138 *569 Those of us who are concerned about class cleavages among black women would also rebut the claim that middle-class females are entitled to a special exemption from criticism for their parenting choices. An assessment of single motherhood which emphasizes socioeconomic standing is no less offensive or divisive than blanket reproach. The notion of a means test for black motherhood is repulsive. It would be tantamount to delegating to economic forces hostile to the community the decision of who should have black children and who should not. The critique of the distribution of wealth which decidedly favors whites over blacks applies to some extent to the means by which middle-class blacks achieve their superior socioeconomic standing. Bourgeois black women should be no more privileged to bring children into the world than poor ones. What proof is there that middle-class black women are better mothers than poorer ones? Material convenience is not a moral necessity with regard to raising children. Poor black women are not total captives of their material circumstances, nor strangers to the mores of the dominant society. Even though their options are limited, black women might still ask themselves what is the magic of having a husband. The support of an extended family has proven to be more reliable in some cases than marriage relationships. 139 Additionally, in situations where disappointed trust and misplaced reliance carry a high psychological and economic price, flexible relationships with lovers and boyfriends can be an asset. 140 If we are to stake out an ethical black feminist position on single motherhood, it cannot be dependent on socioeconomic status. Furthermore, professional success and economic security do not buy black women freedom from other folks' ideas of their obligations to their race, their sex, and their class. Rather than trying to distinguish ourselves from one another, the general condemnation of black unwed pregnancy and female-headed families should be taken as proof that to some extent black women of all classes share a common ideological straitjacket insofar as motherhood and marriage are concerned.

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At bottom, unmarried black woman workers who have babies are being accused of carrying on like modern-day Jezebels when they should be acting like good revisionist Mammies. Though not totally divorced from reality, Jezebel and Mammy were largely ideological constructs that supported slavery. Each pertained to black female slaves' intertwined roles as sexual beings and workers. Each justified the *570 economic and sexual exploitation of black female slaves by reference to their character traits, rather than to the purposes of the masters. Jezebel was the wanton, libidinous black woman whose easy ways excused white men's abuse of their slaves as sexual partners and bearers of mulatto offspring. 141 Jezebel was both free of the social constraints that surrounded the sexuality of white women, as to whom she represented a threat, and isolated from the men of her own community. 142 In contrast, Mammy was asexual, maternal, and deeply religious. 143 Her principal tasks were caring for the master's children and running the household. 144 Mammy was said to be so enamored of her white charges that she placed their welfare above that of her own children. 145 Mammy was the perfect slavea loyal, faithful, contented, efficient, conscientious member of the family who always knew her place; and she gave the slaves a white-approved standard of black behavior. 146 She was the personification of the ideal slave, and the ideal woman, ... an ideal symbol of the patriarchal tradition. She was not just a product of the cultural uplift theory sic which touted slavery as a means of civilizing blacks , but she was also a product of the forces that in the South raised motherhood to sainthood. 147 Commentators have emphasized the negative implications of the Mammy stereotype. Writes Elizabeth Fox-Genovese: If implicitly the idea of the Mammy referred to motherhood and reproduction, it also claimed those privileges for the masters rather than for the slaves themselves. Just as Buck signaled the threat [to] masterslave relations, Mammy signaled the wish for organic harmony and projected a woman who suckled and reared white masters. The image displaced sexuality into nurture and transformed potential hostility into sustenance and love. It claimed for the white family the ultimate devotion of black women, who reared the children of others as if they were their own. Although the image of the Mammy echoed the importance that black slaves attached to women's roles as mothers, it derived more from the concerns of the master than from those of the slave. 148 *571 Bell Hooks sounds a similar theme:

The mammy image was portrayed with affection by whites because it epitomized the ultimate sexist-racist vision of ideal black womanhood complete submission to the will of whites. In a sense whites created in the mammy figure a black woman who embodied solely those characteristics they as colonizers wished to exploit. They saw her as the embodiment of woman as passive nurturer, a mother figure who gave all without expectation of return, who not only acknowledged her inferiority to whites but who loved them. 149

Unsurprisingly, there have been efforts toredeem Mammy, I suppose because the role in part praises black women's maternal qualities. For example, historian Eugene Genovese has concluded that, while the black slave woman who actually occupied the position of Mammy absorbed the paternalistic ethos of her master's society, she also acquired courage, compassion, dignity, and self-respect and might have provided a black model for these qualities among people who needed one, had not the constricting circumstances of her own development cut her off ... from playing that role. 150 Genovese continues, more ambivalently, Her tragedy lay, not in her abandonment of her own people, but in her inability to offer her individual

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power and beauty to black people on terms they could accept without themselves sliding further into a system of paternalistic dependency. 151 The critique of the images of black women whites have historically promoted is relevant to the assessment of the treatment accorded contemporary role models. Role models are supposed to forgo the vices of Jezebel and exhibit the many virtues of Mammy. The case of Crystal Chambers illustrates this quite well. When Crystal Chambers refused to subordinate her interest in motherhood to the supposed welfare of the Club girls, she essentially rejected the Club's attempt to impose upon her the positive stereotype of the black female as a repressed, self-sacrificing, nurturing woman whose heart extends to other people's children because she cannot (or should not) have kids of her own. Instead, like a Jezebel, Crystal Chambers flaunted her sexuality and reproductive capacity, but, unlike her counterpart in slavery, she did so in furtherance of her own ends, in defiance of her white employers, and in disregard of a rule that forbade her from connecting with a man outside of the marriage relationship. *572 As if to resemble the role model Genovese says Mammy could have been, Crystal Chambers was supposed to expose the young Club members, the beneficiaries of white benevolence, to images congruent with traditional notions of patriarchy that were not entirely consistent with the norms of the black community. She was supposed to be an accomplice in regulating the sexuality of other young black females, in much the same way that she was expected to tolerate the regulation of her own. The courts would have us believe that the Club acted for the good of the girls who would miss out on a host of opportunities if they became teen mothers. Yet the distinction between paternalism and oppression is hardly crisper now than it was during slavery. It may be that the young women of the Club set are not fully informed that there is an increasing demand for their labor and are misreading the material landscape. On the other hand, they could be well informed and reaching more negative assessments of their actual economic prospects. If their options are indeed no greater than they imagine, the effort to repress their fertility may stem from its being dysfunctional for the larger society. Declining to live out the myth of the modern Mammy, Crystal Chambers refused to accept the yoke of either paternalism or oppression for herself and thereby freed the Club girls, to a small extent, from manipulation of their productive and reproductive capacities. Crystal Chambers then became valueless to her employers and was in essence expelled from the big house and returned to the field. Breaking the hold of ideological shackles that have restricted black women's sexuality and fertility will not be easy. Hortense Spillers, a black female literary critic, has argued that sexual experience among black people ... is so boundlessly imagined that it loses meaning and becomes, quite simply, a medium through which the individual is suspended. 152 Jezebel and Mammy, harlot and nun, whore and eunuch have acquire d mystical attribution ..., divested of specific reference and dispersed over time and space in blind disregard for the particular agents on which it lands. 153 Spillers likens this process to a mugging. 154 She challenges feminist literary critics to find words that embody differentiated responsiveness, 155 words that enable us to imagine women in their living and pluralistic confrontation with experience. 156 Her charge is equally relevant to black feminist jurisprudes. Some of the black women who are not married yet have babies may be young and wise; others may be poor and brave; and yet a third *573 group may be rich and selfish. Whether they confirm or confound the stereotypes, all of them deserve a measure of freedom with regard to their sexuality that the dominant culture withholds. All of them have the potential for being guerilla fighters in a war that is being waged on three fronts. Struggles to control sexual expression and reproduction pit the combined hegemonic power of whites, males, and the middle class against overlapping constituencies of women, people of color, and ordinary working folks. Black values regarding individual family formation and parenthood decisions, as befits a community under siege, should facilitate, not interfere with, the critical vision which promotes the seeing that negotiates at every point a space for living. 157 In other words, black women who attempt to express their sexuality and control their reproduction should not have to travel through a mine field of stereotypes, cliches, and material hardships with the handicap of a restriction that

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they keep to the right. Black women must be permitted to exercise their judgments without fear of reprisals from patriarchal, bourgeois, and culturally repressive elements within the black community. In an interview given some fifteen months after the birth of her son, news anchor Liz Walker, whose single pregnancy attracted strong disapproval from black clergy, described how she withstood the criticism which, if heeded, would have limited her options and constricted her life: Suppose I let my critics make my decision for me. Suppose I let the loudest outside vocal forces tell me what to do with my life. Hideous thought! I wouldn't have had my son. I believe in believing in myself. Answers have to come from within. This was a test. I made a decision that would influence the rest of my life. It had nothing to do with public opinion. I knew I had made the right decision. 158 She should not have had to struggle.

There are significant norms that bind and create a basis for a community of concern among black men and women of various classes and outlooks. They support an agenda of systemic changes to strengthen minority families. Thus, economic resources should be available to both black men and women who want to maintain families with children. Black teenagers of both sexes should be given the means and the support required to delay parenthood until the time is best for them. Everybody else should be allowed to do what they want to do with the admonition that they give their offspring the advantages of the prenatal *574 care, schools, and health programs that an ethical society would make available to assure its future.

D. Far too much importance is being attached to the impact of black role models. I am not debunking the notion that black youngsters need people beyond their families whose regard for them is reinforcing of their aspirations and ambitions. A sense of connection and closeness to an adult of the same sex and race might prove a valuable addition to familial interaction and supervision. Role models who are affectively engaged with youngsters and act in sync with the concerns and values of the black community are one thing; the sorts of role models the Club envisioned are another. It is hard to think of Crystal Chambers, arts and crafts instructor, as a role model, as powerless and vulnerable as she ultimately proved to be. Her skills and natural behavior were not particularly valued by the people running the Club. Rather than being a role model by virtue of doing her job and living her own life, Chambers was supposed to perform the role of model, play a part that was not of her own design. She was a model in the sense that a model is something made in a [] pliable material ([such] as clay or wax) [that is] intended to serve as a pattern of an object or figure to be made in a more permanent material. 159 When she deviated from the Club's philosophy and engaged in a practice that was common to the community of black women from which she and the members came, she was fired. Crystal Chambers' experience is emblematic of the political significance of the professional black role model (including many of us lawyers and law professors) in this, the post-civil rights, post-black power era. 160 Blacks are deluged with role models. Our attention is constantly being directed to some black person who is, should, or wants to be a role model for others. 161 Many of these role models are black people who have achieved stature and power in the white world because they supposedly represent the interests of the entire black community. Such role models gain capital (literally and figuratively) to the extent that they project an assimilated persona that is as unthreatening to white people as it is (supposed to be) intriguing to our young. They become *575 embodiments of the liberal image of the successful Negro with perhaps a bit of cut-up 162 thrown in to keep them credible. By their sheer visibility, they are of service to those left behind. They are functionally useful in providing images for emulation, and their legitimacy should be unquestioned. Because the emphasis on role modeling suggests

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that motivation and aspirations are the cure for the problems of poor minority people, those who accept the appellation role model help to contain demands from below for further structural changes and thereby assist in the management of other blacks. Insofar as doing more for the poor is concerned, the service role models perform is regrettably distinguishable from mentoring or power brokering; the role models really do not have very much clout to wield on behalf of other blacks, racial and sexual discrimination and exploitation being what they are. Fortunately, the actual impact of these so-called role models is often reduced by the critical insight of the young people who are supposed to be overwhelmed by the positive impressions. 163 For example, the mass media repeatedly referred to University of Maryland basketball player Len Bias as a role model after he died of a drug overdose. The New York Times reported that some of the young urban playground males it interviewed after Bias' death took a cynical view of the hype and even questioned the amount of attention paid to Bias: In a society with rampant cocaine use by all races, they wondered aloud why a black man had been made into a symbol. How many white youths stopped using drugs, one teen-ager asked angrily, when John Belushi the actor died of an overdose of cocaine and heroin? 164 Role models are not an adequate response to material conditions that limit the choices of young black women, both those who get pregnant and those who do not. Pride and positive identities are not substitutes for prosperity or power. 165 Material conditions have to be altered in a way that gives black youngsters the hope that they can come close to being the heroines and heroes of their own lives. To the extent that material conditions remain the same, they must be the subject of a sustained and forthright critique. Role models who do not have power to affect young women's life chances and who stand between them and the means to improve their prospects might as well be the enemy. *576 There are conceptions of role modeling that are not quite so alien to the political and cultural heritage of AfricanAmerican women. 166 As far as I am concerned, Crystal Chambers became more nearly a role model when she fought back, When she became a Sapphire. Her legal protest brought the Club's contempt for the values of the population it served into the open. Her behavior and her lawsuit challenged the hegemony of the Club's white, patriarchal, and middle-class orientation. Her single motherhood represented an alternative social form that one might choose deliberately, rationally, and proudly. She made manifest the critique that is life-as-it-is-lived by ordinary black single mothers. Refusing to go along with the program, she joined the host of non-elite black women who everyday mount local, small-scale resistance grounded in indigenous cultural values, values whose real political potential is often hidden even from those whose lives they govern. Nonetheless, there are times when low-volume defiance must give way to all-out mouthing off. Crystal Chambers' rebellion was ended not because Title VII doctrine could not be manipulated in her favor, but because the presiding judges did not respect her normative framework. Her position should have been out there, vocalized affirmatively, coherently, and vehemently by black women and others, before she got to court. History suggests that black people's resort to conventional warfare on the legal terrain proceeds more smoothly when the positions underlying their claims of entitlement have achieved some positive visibility via skirmishes in the cultural and political domains. Of course, concrete legal cases that prove to be losing efforts may nonetheless provide an opportunity for lawyers and law professors to get their acts together, to engage the enemy, and to refine their arguments. Although the frontline may remain in a distant realm, ideas do percolate from one sphere to another, and those of us who are daring may move about as well. Next time we should all be better prepared.

III. FOR KANTI AND ASIA AND FATIMA ... AND RUTH 167 (Which is to say, Sapphires by Another Name) Back in the sixties, when Aretha Franklin demanded respect (R-E-S-P-E-C-T) 168 and admonished her listeners to think about what *577 you're trying to do me, 169 black people knew she was talking to white America. Times have changed. In

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1988, vocal innovator Bobby McFerrin ambiguously sings Don't Worry, Be Happy with a Caribbean lilt, 170 and the Bush/ Quayle campaign tries to steal the song for its anthem. 171 Somewhere along the line we lost confidence in the political efficacy of cultural critique as a basis for the continuing struggle for black liberation. Perhaps we came to doubt the proprietary of our distinctive cultural production, 172 or we foolishly thought that we would be better off if we dispensed with social protest for a while and just relied on the law. Poor black women have especially suffered as a result. Their enemies have entrapped them in a quagmire of soft variables by challenging their morals and chiding them for looking to the government for relief from economic hardship instead of relying on individual initiative and self-help. The nonsense has deflected attention from the fact that their material circumstances have eroded. 173 The assault on the poor among us is but an aspect of the reduction in the social and political standing of all black women. We are accordingly compelled to defend turf we thought that we had won long ago. Those of us who are law professors have at our complete command the language of rights and entitlements. We can challenge our denigrators' arguments in terms they can relate to, and feel as if we have done something radical in the process. Real righteousness, however, is in short supply. Ours is the salvation that is assured those who propound transcendent values so as to reap the benefits of immanent comfort. We are Reverend Dr. Ms. Feelgoods, 174 preaching to the already anointed and working a bit of magic on ourselves. We engage in ideological combat (albeit at remote outposts), but it bears little relationship to the contemporary cultural resistance of black women. Nor is our scholarly output sufficiently material or political to be useful in identifying oppositional behavior that will truly be transformative. I am not immune from my own criticism. I recognize the limitations of my examination of the case of Chambers v. Omaha Girls Club. It is spirited enough I suppose, bodacious in both tone and content. Yet, I know that what I should be able to do, but cannot, is to relate the struggles of Crystal Chambers to the material and political significance *578 of white philanthropy in black communities, or the relationship between the sexual division of labor and the poor employment prospects of black males, or the full extent of the containment function black elites perform and how they might subvert that role. Against such a larger backdrop, it may be possible to determine whether Crystal Chambers' single pregnancy and revolt and similar behavior by other black single mothers are accommodationist and reproductive of subordination or potentially revolutionary and emancipatory. Real resistance would represent an element of difference, a counter-logic, ... [a] rejection of those forms of domination inherent in the social relations against which it reacts, 175 and a move that threatens to disrupt the operations of the material infrastructure. There is much left for me and other black feminist scholars to do. The reign of President Reagan was blessed with unusual legal and political quiescence among black women, but the signs of dissent are there. I have often wondered why black women give their daughters the names they do. Names like Kanti, Asia, Fatima, Rashiah, Tamika, Latoya, Chauntel, Ebony, and DaJuvetta (for David). 176 The mothers in naming them and the girls in being so named share a bond with other distinctively named black women that extends backward in time to slavery. Desperation born of material and political powerlessness may be operating here. Perhaps the mothers are trying to give to their daughters a mark of distinction that will otherwise be denied them because they are black and female. 177 Uncommon names also generate hostility that can be a severe handicap. 178 I like to think that the names are in part an expression of group solidarity and selfaffirmation, and not the by-product of the mothers' unfamiliarity with and isolation from the dominant culture. Whether the naming practices represent a tactic of opposition, a critique of a society that typically chooses to call its female children Ashley, Jessica, Amanda, and the like, 179 and a form of cultural resistance, I do not know. The possibility should be fully explored. It is my fondest hope, however, that whatever their mothers' motivations, the little black girls will grow up to see the positive potential of what their mothers did and relish being Sapphires by another name.

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Footnotes * Associate Professor of Law, University of Pennsylvania. B.A., University of Rochester, 1970; J.D., University of Pennsylvania, 1973.
The first part of this Article is based on a presentation given at the American Association of Law Schools Workshop for Women in Legal Education, which was held in Washington, D.C., on October 22-24, 1987. Drafts were presented to the Ad Hoc Seminar of the University of Pennsylvania Law School. I must acknowledge the assistance I have received from a number of black female law professors, especially those of the informal Northeastern corridor collective. Susan Sturm, Michelle Fine, and Michael Schill provided particularly helpful comments. I want to thank Jacqueline Sanchez, Elise Zoli, Juan Gomez, and Margo Brodie for their research assistance. The views I express and the way I express them are, of course, my responsibility alone.

NEW DICTIONARY OF AMERICAN SLANG 368 (R. Chapman ed. 1986). Amos n Andy originated as a radio comedy program about two black males. B. ANDREWS & A. JUILLIARD, HOLY MACKEREL! THE AMOS N ANDY STORY 15-16 (1986). It was first broadcast in 1928, and the characters were played by the program's white originators. Id. Amos n Andy came to CBS television in 1951, id. at 60-61, with a cast of carefully chosen black actors. Id. at 45-59. Various black civil rights organizations condemned the television version as insulting to blacks and as portraying blacks in a stereotyped and derogatory manner. The sponsor withdrew from the show, and it was dropped by the network in 1953. Id. at 61, 101. It lived on in syndication until 1966. Id. at 118, 121-22. Several of my contemporaries who watched Amos n Andy have told me that they considered Sapphire a sympathetic character, the justifiably exasperated spouse of a trifling husband. Their comments suggest the potential for subversive interpretations of mass cultural forms. B. HOOKS, AIN'T I A WOMAN: BLACK WOMEN AND FEMINISM 85-86 (1981); Scott, Debunking Sapphire: Toward a NonRacist and Non-Sexist Social Science, in ALL THE WOMEN ARE WHITE, ALL THE BLACKS ARE MEN, BUT SOME OF US ARE BRAVE 85 (G. Hull, P. Scott & B. Smith eds. 1982) [hereinafter SOME OF US ARE BRAVE]. See Painter, N.Y. Times, Dec. 25, 1981, at 12, col. 1 (Hers column about the anger of black female university professors). Among the most readily identifiable legal sources on the legal problems of black women are Scales-Trent, Black Women and the Constitution: Finding Our Place, Asserting Our Rights, 24 HARV. C.R.-C.L. L. REV. 9 (1989); Ellis, Sexual Harassment and Race: A Legal Analysis of Discrimination, 8 NOTRE DAME J. LEGIS. 30 (1981); and Martin, Race, Gender, and Southern Justice: The Rosa Lee Ingram Case, 29 AM. J. LEGAL HIST. 251 (1985). See, e.g., T. MORRISON, BELOVED (1987); T. MORRISON, SULA (1974); T. MORRISON, THE BLUEST EYE (1972). See, e.g., A. WALKER, THE COLOR PURPLE (1982); A WALKER, MERIDIAN (1976). L. ERDRICH, THE BEET QUEEN (1986); L. ERDRICH, LOVE MEDICINE (1984). M. KINGSTON, THE WOMAN WARRIOR: MEMOIRS OF A GIRLHOOD AMONG GHOSTS (1976). See, e.g., Scott, supra note 2, at 86-87; Higginbotham, Two Representative Issues in Contemporary Sociological Work on Black Women, in SOME OF US ARE BRAVE, supra note 2, at 93, 95-97. See, e.g., J. ROBINSON, THE MONTGOMERY BUS BOYCOTT AND THE WOMEN WHO STARTED IT: THE MEMOIR OF JO ANN GIBSON ROBINSON (1987); A GARLAND, WOMEN ACTIVISTS: CHALLENGING THE ABUSE OF POWER 119-31 (1988) (recounting the activities of Cora Tucker in a chapter entitled Good Noise). See, e.g., J. ROLLINS, BETWEEN WOMEN: DOMESTICS AND THEIR EMPLOYERS 138-47 (1985); Sacks, Computers, Ward Secretaries, and a Walkout in a Southern Hospital, in MY TROUBLES ARE GOING TO HAVE TROUBLE WITH ME: EVERYDAY TRIALS AND TRIUMPHS OF WOMEN WORKERS 173, 180-81 (K. Sacks & D. Remy eds. 1984).

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See Austin, Resistance Tactics for Tokens, 3 HARV. BLACKLETTER J. 52, 52 (1986). Marjorie Pryse argues that Zora Neale Hurston captured literary authority for herself and her literary descendants by writing down folk ways and lore. Pryse, Zora Neale Hurston, Alice Walker, and the Ancient Power of Black Women, in CONJURING: BLACK WOMEN, FICTION, AND LITERARY TRADITION 1, 11-12 (M. Pryse & H. Spillers eds. 1985). Writes Pryse, It gave her authority to tell stories because in the act of writing down the old lies, Hurston created a bridge between the primitive authority of folk life and the literary power of written texts. The point is that she wrote them down, thereby breaking the mystique of connection between the literary authority and patriarchal power. Id. Given the emphasis on the culture of minority women, white male colleagues have asked me whether they or others like them can do legal scholarship such as I espouse in this essay. One of them questioned whether an intuitive in-tuneness with minority women was not required to do an adequate job. Black academics of both sexes and white feminist scholars have confronted similar questions, and their responses may be instructional. See Awkward, Race, Gender, and the Politics of Reading, 22 BLACK AM. LIT. FORUM 5 (1988). Given the dearth of work by anyone reflecting a black feminist jurisprudence, an extended answer to the question would be premature. At this point, I would only emphasize that the subject is scholarship, not reportage. Self-awareness and self-criticism are required of all who do it. Adopting a black feminist perspective would require that white male scholars criticize the white supremacist and patriarchal thinking that are the sources of their superior status. Moreover, because white male scholars have the capacity to dominate any area of inquiry they share with minority academics, see Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. PA. L. REV. 561 (1984), they have the capacity to dilute whatever counterideological impact black feminist scholarship might have. For these reasons, wariness is in order. See West, The Dilemma of the Black Intellectual, 1 CULTURAL CRITIQUE 109, 122, 124 (1985). On the contributions of the female practitioners of these art forms, see, e.g., D. HARRISON, BLACK PEARLS: BLUES QUEENS OF THE 1920S, at 63-111, 221-22 (1988); Carby, It Jus Be's Dat Way Sometime: The Sexual Politics of Women's Blues, 20 RADICAL AMERICA, No. 4, at 9 (1986). A. WALKER, IN SEARCH OF OUR MOTHERS' GARDENS xi-xii (1983). H. BAKER, WORKINGS OF THE SPIRIT: THE POETICS OF AFRO-AMERICAN WOMEN'S WRITING (forthcoming). See generally B. HOOKS, supra note 2. This point has been variously stated by others. See, e.g., G. WADE-GAYLES,, NO CRYSTAL STAIR: VISIONS OF RACE AND SEX IN BLACK WOMEN'S FICTIONNNNNNNNN 52-53 (1984) (chiding black feminists for neglecting black organizations and institutions in their zeal to integrate into the white feminist movement); Radford-Hill, Considering Feminism as a Model for Social Change, in FEMINIST STUDIES/CRITICAL STUDIES 157, 162-63, 163-64 (T. de Lauretis ed. 1986) (calling on black women to organize around their class/race interests while leaving white women to organize around their own). See West, supra note 15, at 123. Fox-Genovese, The Personal Is Not Political Enough, 2 MARXIST PERSPECTIVES, WINTER 1979-80, at 94, 113. For an example of a critique of essentialist thinking about race, see Appiah, The Uncompleted Argument: Du Bois and the Illusion of Race, in RACE, WRITING, AND DIFFERENCEEEEEEEEE 21 (H. Gates ed. 1985). See also Alcoff, Cultural Feminism Versus Post-Structuralism: The Identity Crisis in Feminist Theory, 13 SIGNS 405, 408-14 (1988) (negatively assessing essentialist cultural feminism). See West, supra note 15, at 112-14. For a particularly penetrating criticism of black elites, see Reed, The Black Revolution and the Reconstitution of Domination, in RACE, POLITICS, AND CULTURE: CRITICAL ESSAYS ON THE RADICALISM OF THE 1960S, at 61 (A. Reed ed. 1986).

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See Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323 (1987). Alliance Against Women's Oppression, Poverty: Not for Women OnlyA Critique of the Feminization of Poverty, in THE BLACK FAMILY: ESSAYS AND STUDIES 239 (R. Staples 3d ed. 1986) [hereinafter THE BLACK FAMILY]. See Collins, Learning from the Outsider Within: The Sociological Significance of Black Feminist Thought, 33 SOC. PROBS., Dec. 1986, at S14, S19-20; Combahee River Collective, Combahee River Collective Statement, in HOME GIRLS: A BLACK FEMINIST ANTHOLOGY 272, 276 (B. Smith ed. 1983). See Comment, With Insurance Like This Who Needs Enemies?: Reforming California's Industrial Life Insurance Industry, 13 U.C. DAVIS L. REV. 273 (1980). See U.S. DEP'T OF HEALTH AND HUMAN SERVICES, REPORT OF THE SECRETARY'S TASK FORCE ON BLACK AND MINORITY HEALTH (1985) (Vol. I, Executive Summary). The Report examined the disparity in life expectancies between white and minority Americans in terms of excess deaths, that is, the difference between the number of deaths actually observed in a minority group and the number of deaths that would have occurred in that group if it experienced the same death rates for each age and sex as the White population. Id. at 63. The report attributed four of five excess deaths among minority group members to six causes: cancer, heart disease and stroke, infant mortality, diabetes, homicide and unintentional injuries, and chemical dependency (primarily alcohol abuse as revealed by cirrhosis). Id. at 64-68. The gap between white and black life expectancies is widening. In 1986 blacks had a life expectancy of 69.4 years, down from 69.5 years in 1985 and 69.7 in 1984. Whites had a life expectancy of 75.4 years in 1986, up from 75.3 in 1985 and 1984. Leary, Blacks' Life Span Falls for 2d Consecutive Year, N.Y. Times, Dec. 20, 1988, at C14, col. 3. Accordingly, for the first time in this century, the life expectancy of blacks declined while that of whites increased. Id. The disparity reflected in the 1986 statistics was attributed in part to disproportionate increases among blacks in death resulting from homicides and killings in police confrontations, automobile accidents, and influenza and pneumonia. Id.; In Life Expectancy, Racial Differences Widen, N.Y. Times, Mar. 16, 1989, at B15, col. 1. The causes of the increased death rates clearly reflect the impact of drug abuse and AIDS on the black population. Blacks now constitute 27% of all AIDS cases, although they are roughly 12% of the population. Drake, AIDS Now a Plague of the Poor, Philadelphia Inquirer, June 11, 1989, at 1A, col. 6. Attention is also being focused on the impact of cigarette and liquor ad and promotion campaigns that specifically target poor black and Latino populations, see, e.g., Polman, Tobacco's Hot Pitch to the Poor, Chicago Trib., Mar. 26, 1989, 5, at 1, col. 2; Keppel, Liquor Industry Courts Blacks: Ad Campaigns Aimed at Community Draw Fire of Critics, L.A. Times, July 5, 1987, 4, at 1, col. 2, and on blacks' disparate utilization of medical care and lifesaving procedures, see, e.g., Blendon, Aiken, Freeman & Corey, Access to Medical Care for Black and White Americans: A Matter of Continuing Concern, 261 J. A.M.A. 278 (1989); Wenneker & Epstein, Racial Inequalities in the Use of Procedures for Patients with Ischemic Heart Disease in Massachusetts, 261 J. A.M.A. 253 (1989). U.S. Falling Short on Its Infant Health Goals, N.Y. Times, July 10, 1988, 1, at 17, col. 1. See Austin, Employer Abuse, Worker Resistance, and the Tort of Intentional Infliction of Emotional Distress, 41 STAN. L. REV. 1 (1988). The imperative for such theorizing is illustrated by Sandra Morgen's account of the struggle of a group of poor women in a New England city who organized to keep open a low-cost clinic providing prenatal and gynecological services. Morgen, It's the Whole Power of the City Against Us!: The Development of Political Consciousness in a Women's Health Care Coalition, in WOMEN AND THE POLITICS OF EMPOWERMENT 97 (A. Bookman & S. Morgen eds. 1988). The alternative available to the women was visits to the same physicians who staffed the clinic during their private practice hours and at private practice rates. Id. at 98. The women's commitment remained strong so long as they were engaged in direct negotiations with the representatives of the health care establishment. The representatives, however, refused their demands and directed them to file a claim with the federal Health Systems Agency (HSA). Id. at 101. After the hospital received HSA's investigatory report before the claimants did, they were forced to file a lawsuit in order to keep pressure on the hospital and to gain access to withheld information. Id. at 102. The suit became more time-consuming than anticipated and entangled [the women] in legalistic, bureaucratic tasks to the increasing exclusion of grassroots activity. Id. at 102. The hospital reopened the clinic, denied access to most of the women who fought the closing, and gave the women no credit for the decision. Id. at 102-03. Demoralized, the group was disbanded. Id. at 103.

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629 F.Supp. 925 (D.Neb. 1986), aff'd, 834 F.2d 697 (8th Cir. 1987), reh'g denied, 840 F.2d 583 (1988). Id. at 928. Id. at 929. 834 F.2d at 699 n.2. 629 F.Supp. at 949 & n.45. Id. at 946-47. Id. at 947, 949. 834 F.2d at 701-03. The burden of persuasion with regard to this defense is now clearly on the Title VII claimant. Wards Cove Packing Co. v. Atonio, 57 U.S.L.W. 4583 (U.S. June 5, 1989). 834 F.2d at 703-05. 629 F.Supp. at 943. Id. at 928. Id. Id. at 950. Id. Id. Id. at 928-29. Id. at 929. Id. at 950. Id. at 951. Id. at 945. Id. at 934. Id. at 945 n.40. Id. at 928. Id. Id. at 934. Id. Id. at 946. Id. at 951-52 (emphasis in original).

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834 F.2d 697, 705 (McMillian, J., dissenting); 840 F.2d 583 (Lay, J., joined by Heaney & McMillan, JJ., dissenting from the order denying the petition for rehearing en banc). 834 F.2d at 708. The trial court asserted, apparently based on the testimony, that the number of teenage pregnancies among blacks is presently much higher than among whites. 629 F.Supp. at 928. It appears that in Douglas County, Nebraska, in 1981, the fertility rate of black teenagers [was] approximately 2 1/2 times greater than that for whites. Id. at 949 n.45. Blacks, however, comprised only 12.8% of the population. Id. Altough the court's statement may have been true for Douglas County, it does not reflect the national picture. Marian Wright Edelman puts the epidemic in perspective: Contrary to popular perception, the majority of teen parents (342,283 of 499,038 in 1983) are white. Poor and minority teens, however, have a disproportionate share of teen births and are disproportionately affected by the social and economic consequences of early parenthood. A black teen is twice as likely to become pregnant as a white teens. A black teen is five times as likely as a white teen to become an unwed parent. M. EDELMAN, FAMILIES IN PERIL: AN AGENDA FOR SOCIAL CHANGE 57 (1987). 629 F.Supp. at 950. See generally J. LADNER, TOMORROW'S TOMORROW: THE BLACK WOMAN (1971); Mayfield, Early Parenthood Among Low-Income Adolescent Girls, in THE BLACK FAMILY, supra note 27, at 211. I. GARFINKEL & S. MCLANAHAN, SINGLE MOTHERS AND THEIR CHILDREN: AN AMERICAN DILEMMA 83-84 (1986); Evans, Adolescent Sexual Activity, Pregnancy, and Childbearing: Attitudes of Significant Others as Risk Factors, in THE BLACK ADOLESCENT PARENT 75, 89, 92 (S. Battle ed. 1987). The extent to which tolerance is accompanied by familial support may be decreasing. Joyce Ladner reports that the child care assistance black teenagers receive from their mothers is declining because their mothers are more likely to be in the workforce or still in their childbearing years, and thus have less time to take care of grandchildren. Ladner, Black Teenage Pregnancy: A Challenge for Educators, 56 J. NEGRO EDUC. 53, 61 (1987) (citation omitted). Ladner argues that the increased parenting responsibilities placed on inexperienced, poorly educated teen mothers has serious negative consequences for their children. Ladner, Teenage Pregnancy: The Implication for Black Americans, in THE STATE OF BLACK AMERICA 1986, at 65 (J. Williams ed. 1986). See also Boone, Social and Cultural Factors in the Etiology of Low Birthweight Among Disadvantaged Blacks, 20 SOC. SCI. & MED. 1001, 1004, 1006 (1985) (friends reported to be a more reliable source of support than family). The term is variously spelled. Bougie or boojy is an adjective, derived from bourgeoisie, referring to elitist blacks whose money and position make them think they're white. G. SMITHERMAN, TALKIN AND TESTIFYIN; THE LANGUAGE OF BLACK AMERICA 251 (1977). Note, Employment Equality Under the Pregnancy Discrimination Act of 1978, 94 YALE L.J. 929, 929-30 (1985). See THE DICTIONARY OF CONTEMPORARY SLANG 10 (J. Green comp. 1984). See supra text accompanying note 53. I. REED, RECKLESS EYEBALLING (1986). In Reed's novel, the term refers to the offense committed by a black man who stares at a white woman too long. Id. at 25. In Ponton v. Newport News School Bd., 632 F.Supp. 1056 (E.D. Va. 1986), the court rejected the notion that the mere sight of an unmarried, pregnant teacher would have a sufficiently undesirable influence on schoolchildren to justify excluding the teacher from the classroom. Id. at 1062. The court in Ponton, however, assumed that the plaintiff's students would not be close enough to her to know her marital status and that her single pregnancy would not interfere with her ability to teach the prescribed curriculum. Id. at 1062-63. The prime exegesis of this perspective is C. MURRAY, LOSING GROUND: AMERICAN SOCIAL POLICY, 1950-1980 (1984).

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Unwed Mothers Challenge Firing at Omaha Girls Club, Omaha World-Herald, Dec. 1, 1982, at 1, col. 1. Id. Dismissal of Two Girls Club Staffers Was Logical, Omaha World-Herald, Dec. 11, 1982, at 20, col. 1. Id. See Read, For Poor Teen-agers, Pregnancies Become New Rite of Passage, Wall St. J., Mar. 17, 1988, 1, at 1, col. 1. See Hogan & Kitagawa, The Impact of Social Status, Family Structure, and Neighborhood on the Fertility of Black Adolescents, 90 AM. J. SOC. 825, 846 (1985); A. ABRAHAMSE, P. MORRISON & L. WAITE, BEYOND STEREOTYPES: WHO BECOMES A SINGLE TEENAGE MOTHER 57-60 (1988). A study conducted by the Rand Corporation found that the presence of college plans inhibits single childbearing for blacks by nearly 10 percentage points[,] ... the strongest [effect] ... measured. A. ABRAHAMSE, P. MORRISON & L. WAITE, supra note 79, at 62. See also K. MOORE, M. SIMMS & C. BETSEY, CHOICE AND CIRCUMSTANCE: RACIAL DIFFERENCES IN ADOLESCENT SEXUALITY AND FERTILITY xii-xiii, 67-86 (1986) (suggesting that desperately low educational goals are not a significant factor affecting black fertility, although frustration in fulfilling them might be). There is little statistical data concerning the correlation between unemployment and rates of black teenage pregnancy. See K. MOORE, M. SIMMS & C. BETSEY, supra note 80, at 87-101. Interview accounts, however, suggest that the inability to procure employment motivates teens, particularly males, to prove their maturity through the conception of children. See id. at 90; D. FRANK, DEEP BLUE FUNK & OTHER STORIES: PORTRAITS OF TEENAGE PARENTS 11, 158 (1983); Anderson, Sex Codes and Family Life Among Poor Inner-City Youths, ANNALS, Jan. 1989, at 59, 77. See K. MOORE, M. SIMMS & C. BETSEY, supra note 80, at 58-59, 62-64; L. SCHORR, WITHIN OUR REACH: BREAKING THE CYCLE OF DISADVANTAGE 40-55 (1988). Fine & Zane, Bein' Wrapped Too Tight: When Low Income Women Drop Out of High School, in DROPOUTS FROM SCHOOLS: ISSUES, DILEMMAS & SOLUTIONS (L. Weis ed.) (forthcoming 1989). L. DASH, WHEN CHILDREN WANT CHILDREN: THE URBAN CRISIS OF TEENAGE CHILDBEARING 124 (1989). Id. D. FRANK, supra note 81. Id. at 11. See also L. DASH, supra note 84, at 121, 227, 236. Anderson, supra note 81. Id. at 76. Id. at 62-63. Id. at 62. Id. at 77. Id. Id. at 61-63. D. FRANK, supra note 81, at 11-12. See also Boxill, How Would You Feel ...?: Clinical Interviews with Black Adolescent Mothers, in THE BLACK ADOLESCENT PARENT, supra note 67, at 41, 47-49.

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See generally NATIONAL RESEARCH COUNCIL PANEL ON ADOLESCENT PREGNANCY AND CHILDBEARING, RISKING THE FUTURE 123-39 (1987) [hereinafter RISKING THE FUTURE]. W. WILSON, THE TRULY DISADVANTAGED: THE INNER CITY, THE UNDERCLASS, AND PUBLIC POLICY 70 (1987). See Presser & Baldwin, Child Care as a Constraint on Employment, 85 AM. J. SOC. 1202, 1206 (1980). See Savage & Roberts, Unmarried Teens and Child Support Services, 21 CLEARING-HOUSE REV. 443 (1987); Simms, Black Women Who Head Families: An Economic Struggle, in SLIPPING THROUGH THE CRACKS: THE STATUS OF BLACK WOMEN 141, 149-50 (M. Simms & J. Malveaux eds. 1986). See M. EDELMAN, supra note 64, at 53. But see Kleinman & Kessel, Racial Differences in Low Birth Weight: Trends and Risk Factors, 317 (NEW ENG. J. MED. 749, 752-53 (1987) (the adverse impact of black adolescent childbearing on overall statistics has been overemphasized). D. FRANK, supra note 81, at 11, 44; Diamant, Teenage Pregnancy and the Black Family, Boston Globe, May 18, 1986 (Magazine), at 19, 47. D. FRANK, supra note 81, at 61-82. Anderson, supra note 81, at 67. Id. at 67, 71-73. D. FRANK, supra note 81, at 98-101. Id. at 151-92. See Willis, Cultural Production and Theories of Reproduction, in RACE, CLASS AND EDUCATION 107 (L. Barton & S. Walker eds. 1983); Giroux, Theories of Reproduction and Resistance in the New Sociology of Education: A Critical Analysis, 53 HARV. EDUC. REV. 257 (1983). J. LADNER, supra note 66, at 124; Anderson, supra note 81, at 62; Boone, supra note 67, at 1007. L. DASH, supra note 84, at 31 (emphasis in original). See generally Fine & Zane, supra note 83. D. FRANK, supra note 81, at 123-24; L. DASH, supra note 84, at 68, 127, 136. Boxill, supra note 95, at 44-45. Thompson, Search for Tomorrow: On Feminism and the Reconstruction of Teen Romance, in PLEASURE AND DANGER: EXPLORING FEMALE SEXUALITY 350, 376-78 (C. Vance ed. 1984). Fine & Zane, supra note 83, at __. On the difficulties that schools have in performing this sort of function, see Fine, Silencing in Public Schools, 64 LANGUAGE ARTS 157 (1987). During the academic year 1984-1985, Fine conducted an ethnographic study in a New York City comprehensive high school attended by predominantly low-income minority students from Central Harlem. Id. at 158, 159. Fine observed that the fear of having the students engage in critical conversation about social and economic arrangements, particularly inequitable distributions of power and resources, by which these students and their kin suffer disproportionately ... provoked the move to silence. Id. at 160. Racism and dropping out, for example, were taboo subjects. Id. at 159, 162-63. The undesirable talk that a frank confrontation with the realities of the students' lives would have threatened both norms the teachers held dear and their authority. Id. at 160-61. Such talk had to be subverted, appropriated, and exported. Id. at 157. Contradiction and ambivalence ... [were] forced underground. Id. at 165. Fine concludes that, for low-income minority youths, the consequence of silencing was to systematically alienate, cut off

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SAPPHIRE BOUND!, 1989 Wis. L. Rev. 539 from home, from heritage and from lived experience, and ultimately to sever from their educational process. Id. at 161. The policies and practices of silencing produced critical dropouts and mute, unengaged, passive attendees. Id. at 170-72.

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Pregnancy Among Black Teenagers: Hearing Before the Subcommittee on Public Assistance and Unemployment Compensation of the House Ways and Means Committee 53 (1986). Id. Pregnant, Unmarried and Much in the Public Eye, N.Y. Times, July 12, 1987, 1, at 27, col. 4. The condemnation of Crystal Chambers might seem even more appropriate because she was a professional role model who worked directly with young black girls and teenagers. From the perspective of the Club, her job security would have been at the expense of the youngsters she was hired to serve. Rowan, Bostonians Are in Swivet over Role Model Behavior, Atlanta Constitution, June 18, 1987, at 19A, col. 1. 629 F.Supp. at 946. RISKING THE FUTURE, supra note 96, at 65-76. W. WILSON, supra note 97, at 71-72. RISKING THE FUTURE, supra note 96, at 126-27, 128-29. Pregnant teens report that their relationships with parents, partners, and peers are closer than they were before they became pregnant, and that they are the objects of increased attention. See A. Graham, Teenage Pregnancy: A Study of Pregnant and Non-Pregnant Urban Black High School Students on Personality, Societal and Family Factors 80 (1986) (doctoral dissertation, Rutgers University). Hooks reminds us that black women in America are not really matriarchs since they lack economic security, social and political power, control over their bodies, and a preference for daughters. B. HOOKS, supra note 2, at 71-77. OFFICE OF PLANNING AND POLICY RESEARCH, U.S. DEP'T OF LABOR, THE NEGRO FAMILY: THE CASE FOR NATIONAL ACTION 29 (1965). Gilkes, From Slavery to Social Welfare: Racism and the Control of Black Women, in CLASS, RACE, AND SEX: THE DYNAMICS OF CONTROL 288, 295-96 (A. Swerdlow & H. Lessinger eds. 1983). BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 17 (108th ed. 1988). Id. at 16. W. WILSON, supra note 97, at 73. Testa, Astone, Krogh & Neckerman, Employment and Marriage Among Inner-City Fathers, ANNALS, Jan. 1989, at 79. W. WILSON, supra note 97, at 81-89. For example, a New York Times article ostensibly about the shrinking college enrollment of black males had as its theme the concern that, because of the decline, black women would wind up with better educations, more prestigious jobs, higher incomes, and a larger share of the leadership roles, and the resulting social and economic imbalance between black men and women would undermine black institutions. Daniels, Experts Foresee a Social Gap Between Sexes Among Blacks, N.Y. Times, Feb. 5, 1989, 1, at 1, col.5. Staples, Beyond the Black Family: The Trend Toward Singlehood, in THE BLACK FAMILY, supra note 27, at 99, 105. Id. at 101.

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Id. Id. Spanier & Glick, Mate Selection Differentials Between Whites and Blacks in the United States, in THE BLACK FAMILY, supra note 27, at 114, 123-25. See McAdoo, Strategies Used by Black Single Mothers Against Stress, in SLIPPING THROUGH THE CRACKS: THE STATUS OF BLACK WOMEN, supra note 99, at 153; H. MCADOO, CHANGES IN THE FORMATION AND STRUCTURE OF BLACK FAMILIES: THE IMPACT ON BLACK WOMEN 19-22 (Wellesley College Center for Research on Women Working Paper No. 182, 1988). See C. WILLIE, A NEW LOOK AT BLACK FAMILIES 54-57, 149-56 (2d ed. 1981). D. WHITE, AR'N'T I A WOMAN? FEMALE SLAVES IN THE PLANTATION SOUTH 46, 61 (1985). E. FOX-GENOVESE, Within the Plantation Household: Black and White Women of the Old South 292 (1988). D. WHITE, supra note 141, at 46. E. GENOVESE, ROLL, JORDAN, ROLL: THE WORLD THE SLAVES MADE 353-56 (1972). See id. at 356-57 (suggesting that Mammies' regard for their masters' children was of strategic significance to their own families). Id. at 356. D. WHITE, supra note 141, at 58 (emphasis in original). E. FOX-GENOVESE, supra note 142, at 291-92. B. HOOKS, supra note 2, at 84-85. E. GENOVESE, supra note 144, at 360-61. Id. at 361. Spillers, Interstices: A Small Drama of Words, in PLEASURE AND DANGER, supra note 113, at 73, 85. Id. at 94-95. Id. at 95. Id. Id. at 94. Id. at 84. Christy, Liz Walker Talks About Her Real Riches, Boston Globe, Mar. 22, 1989, at 75, 77, col. 1. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1451 (1981). See generally Reed, supra note 25. See, e.g., B. REYNOLDS, AND STILL WE RISE: INTERVIEWS WITH 50 BLACK ROLE MODELS (1988); Raspberry, NoChoice Role-Models Can Be Countered, Chic. Trib., Oct. 27, 1987, 1, at 21, col. 2; Arnold & Pristin, The Rise and Fall of Maxine Thomas, L.A. Times, May 6, 1988, 2, at 1, col. 2; Hofman, Ebony Fashion Fair Raises $15,000 for Black Actors Theatre, L.A.

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SAPPHIRE BOUND!, 1989 Wis. L. Rev. 539 Times, Apr. 14, 1988, 9, at 4, col. 2 (Orange Cty. ed.) (theatre group and fashion show gives audiences a chance to see more black role models).

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Outspoken and militant are the terms usually employed to described vocal elite champions of the causes of the black masses. See Taylor, Black Youth and Psychosocial Development: A Conceptual Framework, in THE BLACK FAMILY, supra note 27, at 201, 207-08. Freedman, From Playgrounds, Observations on Len Bias, N.Y. Times, June 29, 1986, 1, at 1, 28, col. 3. C. VALENTINE, CULTURE AND POVERTY 151 (1968). See Gilkes, Successful Rebellious Professionals: The Black Woman's Professional Identity and Community Commitment, 6 PSYCHOLOGY OF WOMEN Q. 289 (1982). Kanti is graduating from high school in Washington, D.C. Asia and Fatima are among the apples of their grandmother's eye. Ruth is the daughter of Crystal Chambers. 629 F.Supp. at 929 n.6. A. FRANKLIN, Respect, on ARETHA'S GOLD side 1, track 3 (1969). A. FRANKLIN, Think, on ARETHA'S GOLD, supra note 168, at side 2, track 3; see also A. FRANKLIN, Think (1989), on THROUGH THE STORM side 2, track 2 (1989). B. MCFERRIN, Don't Worry, Be Happy, on SIMPLE PLEASURES side 1, track 1 (1988). Philadelphia Inquirer, Oct. 23, 1988, at 3A, col. 3. I use the term expansively. It includes the collective, creative use of discourses, meanings, materials, practices and group processes to explore, understand and creatively occupy particular positions, relations and sets of material possibilities. Willis, supra note 107, at 114. Simms, supra note 99, at 143-48. A. FRANKLIN, Dr. Feelgood, on ARETHA'S GOLD, supra note 168, at side 1, track 4. S. ARONOWITZ & H. GIROUX, EDUCATION UNDER SIEGE 105 (1985). See J. McGregory, Aareck to Zsaneka: African American Names in an Urban Community, 1945-1980 (1985) (master's thesis, Cornell University). See C. GREENE, 70 SOUL SECRETS OF SAPPHIRE (soul secret # 49) (1973). See Jackson, Names Can Hurt, ESSENCE, Apr. 1989, at 134 (an assimilationist attack by a black woman on the naming practices of poor, young black mothers); Reynolds, Making Names for Themselves, Boston Globe, Apr. 7, 1989, at 33, col. 4 (reporting on the debate among African Americans regarding distinctive names). Names Parents Choose, N.Y. Times, Apr. 14, 1988, at B1, col. 6.

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